Position of power and sexual harassment

Cases

Position of power and sexual harassment

A senior surgeon used his position of power over a junior doctor to sexually harass the doctor. The Victorian Civil and Administrative Tribunal made this finding in awarding the doctor $100,000 compensation.

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A senior surgeon used his position of power over a junior doctor to sexually harass the doctor. The Victorian Civil and Administrative Tribunal made this finding in awarding the doctor $100,000 compensation.

The senior neurosurgeon had a major say in the success or otherwise of the trainee doctor’s career prospects. He argued that the trainee neurosurgeon was not up to the required standard. He called a number of highly regarded medical witnesses in support of his case. However, the tribunal found, on the evidence, that he had orchestrated an occasion where he molested the trainee surgeon resulting in extreme trauma in the victim: ‘She has reacted to it as a gross violation of her body and her trust.’

Evidence assessed

Judge Harbison considered the evidence and pointed to the timing of the allegation as to competence made by the senior surgeon:

‘He made no written complaint at all as to the Complainant’s working behaviour until the day after he had been advised … of her intention to proceed with this complaint of harassment.

On that day, 1 February 2006, he wrote the long letter … The contents of that letter are completely contrary to the contents of the … assessment handed to the Complainant the previous day and, in my view, represent an attempt by the Respondent to manufacture reasons for the Complainant to have made the Complaint.’

On the witnesses called by the senior surgeon, the judge commented:

‘It is disappointing that none of the witnesses called by the Respondent appear to have taken her claim of harassment seriously.'

'It is disappointing that the Board never considered the claims to be sufficiently grave to warrant consideration of the need to reassess of her capacity in the last assessment period.'

'It reflects badly on the profession of neurosurgery that only two neurosurgeons who gave evidence in this case … were prepared to take a serious view of an allegation made by a trainee about a surgeon in a position of power over her.’

Damages

In assessing damages the tribunal did not take into account that her failure to achieve her qualifications may have been due in part to the incident:

‘I must leave open the possibility in assessing damages that she may not have qualified, and that her lack of qualification may be due to factors other than those identified in this proceeding. I will therefore exclude from consideration any damages that might otherwise have flown from the delay in achieving her qualification.’

Tan v Xenos (No 3) (Anti-Discrimination) [2008] VCAT 584 (11 April 2008)


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